Judge to rule whether mail-in ballots can be counted before Election Day

A court filing that would allow Maryland to begin counting mail-in ballots early for this fall’s gubernatorial election lies in the hands of a Montgomery County Circuit Court judge following a hearing Tuesday.

The Maryland State Board of Elections filed the action in hopes of avoiding delays in results similar to those experienced during the July primary as officials counted a deluge of mail-in ballots that have become commonplace since the coronavirus pandemic.

Current law, which predates the widespread use of mail-in ballots, only allows such ballots to be opened and tallied starting the Thursday after Election Day. That’s the latest start in the nation to the counting of mail-in ballots.

Elections officials asked Judge James A. Bonifant to allow counting to begin on Oct. 1, arguing the extraordinary number of voters expected to participate by mail in November constitutes an emergency.

Del. Dan Cox, the Republican nominee for governor, opposed the motion, making the case it would violate the separation of powers laid out in the state Constitution.

A decision in the case is due by Friday. Bonifant scheduled an oral opinion hearing for that afternoon.

During Tuesday’s hearing in Rockville, Daniel Kobrin, an assistant attorney general representing the state election board, acknowledged that constitutional power over elections rests with the legislature, but the state already deviates from that structure, he said.

“A delegation is necessary for an election to work,” he argued.

The election board has asked Bonifant to temporarily suspend existing election law, not nullify it, Kobrin said. That stops short of constituting legislative action, he argued.

The July 19 primary was Maryland’s first election since the pandemic where ballot counting could not begin early. During the primary and general elections in 2020, an executive order from Republican Gov. Larry Hogan allowed mail-in ballots to be opened and processed weeks in advance of Election Day.

Election officials and state lawmakers tried to make that early canvassing period permanent earlier this year, passing legislation allowing ballots to be counted up to eight business days before the start of early voting. Hogan vetoed the bill, saying he supported the canvassing change, but objected because it did not include other elements dealing with election security.

Attorney Ed Hartman, who represented Cox on Tuesday, argued the General Assembly had the opportunity to override Hogan’s veto but chose not to.

“What we’ve heard is a passionate plea of policy,” Hartman said. “What we’ve heard are arguments that should be made in the General Assembly.”

Bonifant noted the legislature would have needed to call a special session to override Hogan’s veto, which was not delivered until after the regular session had ended. The legislature cannot reconvene without Hogan’s blessing unless he has vetoed a bill related to the state budget.

Bonifant read aloud from Hogan’s veto message stating he supported the earlier timeline for counting ballots.

“You know how he feels about this,” the judge said.

“It doesn’t matter because that’s not our fault,” Hartman said.

Cox, who attended a portion of the court hearing, said afterward that the legislature, of which he is a member, knew they would not have the ability to override Hogan’s veto when they passed the ballot counting measure late in the 2022 session.

“We do this all the time,” he said.

About 345,000 voters submitted mail-in ballots in July’s primary, which featured highly competitive Democratic and Republican contests for governor, along with races for attorney general, comptroller, U.S. Congress, the Maryland General Assembly and others.

Another roughly 646,000 voters cast ballots in-person or during early voting, returns that were largely tallied and posted online on primary night or the day afterward. When the mail-in ballots — representing about a third of all votes cast — were tallied after that, candidates’ vote totals changed daily.

Races with wide margins, such as Cox’s victory over Republican Kelly Schulz, were settled on primary night. But others, like Democrat Wes Moore’s victory in his party’s nine-way gubernatorial primary, had to wait until after the second full day of mail-in counting to become clear.

An extended counting process in some counties delayed final results in some races for up to 30 days, Kobrin said Tuesday. The state cannot sustain such a delay this fall because some local officials are due to be sworn in early December.

Voters already are signaling they will participate in higher numbers using mail-in ballots, Kobrin said. During the primary, 508,000 voters requested mail-in ballots. With the general election still seven weeks away, 524,000 voters already have requested them.

Cox, an ally of former Republican President Donald Trump who helped spread the president’s unproven claims of widespread election fraud in 2020, would not say whether he would accept the results of the election if the counting timeline is changed.

“The answer to that question is very clear,” he said. “Will the process now follow the constitutional approach to allow for confidence in that election? That’s the issue at stake here today.”